Mr X and the Department of Communications, Energy and Natural Resources

Mr X and the Department of Communications, Energy and Natural Resources

Case number: 080027

Whether the Department is justified in its decision to refuse to release details of the total amounts paid to the experts involved in compiling the published report on the Health Effects of Electromagnetic Fields (the report).

Case Summary

The Commissioner's authorised official annulled the Department's decision and directed the release of the details at issue.

Date of Decision: 16.10.2009

Review Application under the Freedom of Information Acts 1997 &amp; 2003 (the FOI Act) to the Information Commissioner

Background:

On 25 September 2007, the applicant requested access to a number of details relating to the report, which had been published in 2007. One element of the request sought details of the "total amounts paid to each individual Expert" involved in compiling the report. The Department's decision of 12 November 2007, in so far as it concerned this aspect of the request, stated that the total amount paid to three "external" experts was €33,917.58; that "[i]n lieu of fees a donation was made to the World Health organisation (WHO) of €20,000 and it was also agreed that a research sponsorship of €15,000 will be paid to UCD"; and that €32,254 was "paid in 2006 to a retired Civil Servant who was re-engaged and remunerated in accordance with civil service guidelines."

The applicant's internal review application of 25 November 2007, in so far as it related to the above, reiterated that he had sought details of the total amounts paid to each individual involved in compiling the report. The Department's internal review decision of 10 December 2007 (again in so far as it related to the above element of the request) upheld the refusal of further details, on the basis that they were exempt from release under section 21(1)(c) of the FOI Act, and that the public interest did not warrant their release. The applicant made his application to this Office on 24 January 2008.

In conducting this review, I have had regard to letters sent to the Department and to the experts concerned by Ms Anne Moran, Investigator in this Office. I have had regard to the responses received, to the views of the applicant as set out in his application to this Office, and to the provisions of the FOI Act. I have also had regard to the details in the records at issue (see next section), which were supplied to this Office with a letter dated 28 February 2008 for the purposes of this review.

Scope of the Review

In the course of the review, Dr B advised this Office that he had no objections to the release of any information regarding himself. It is for the Department to release (or clarify) any relevant details in so far as they relate to Dr B, however.

Dr C did not reply to Ms Moran's views that the records should be released. Ms Moran had made it clear to the experts that if she received no response by a certain date, she would take it that they had no objections to the release of the details at issue and that the ensuing decision from this Office could proceed on such an understanding. Accordingly, I could find that the details, in so far as they affect Dr C, may be released. However, Dr D responded and objected to the release of the details concerning him. It is simple arithmetic to deduce the payment made to Dr D if details regarding the other three experts are released; accordingly, in this case, I intend to consider whether or not the details at issue regarding Drs C and D should be withheld under the FOI Act, effective consent from Dr C notwithstanding.

Accordingly, my review is confined to the sole issue of whether or not the Department's decision to withhold records showing details of the payments made to the two remaining experts is in accordance with the provisions of the FOI Act. The decision by this Office is by way of a hearing de novo in the light of the facts and circumstances applying at the date of the review by this Office, and not those facts and circumstances pertaining on the date of the original decision. It should be noted that my review cannot review the issue of access to records concerning on whose behalf the donation and research sponsorship were made or agreed upon, given that they do not form part of the request for details of the total amounts paid "to" each individual expert.

Section 34(12)(b) of the FOI Act states that a decision to refuse to grant a request under section 7 shall be presumed not to have been justified unless the head of the relevant public body shows to my satisfaction that the decision was justified. Thus, the onus is on the Department to justify its decision to withhold the records at issue. I consider that there is also a responsibility on any third parties to a review to demonstrate why records containing information affecting their interests is exempt from release under the FOI Act. However, no party has a right of veto over the release of such records.

I note that concerns had initially been expressed to the Department by one of the experts that the details at issue may be used in some way against him. However, section 8(4) of the FOI Act states that, "in deciding whether to grant or refuse to grant a request under section 7, (a) any reason that the requester gives for the request, and (b) any belief or opinion of the head as to what are the reasons of the requester for the request, shall be disregarded". Accordingly, I cannot have regard to this point of view. Finally, while I am required by section 34(10) of the FOI Act to give reasons for my decisions, this is subject to the requirement of section 43 that I take all reasonable precautions in the course of my review to prevent disclosure of information contained in an exempt record.

Preliminary Matter - the Request

The applicant's request requested specific details, as opposed to specific records. The FOI Act does not generally provide a mechanism for providing particular details, or answering questions, except to the extent that a request for specific details, or a question, can reasonably be inferred to be a request for a relevant record which contains the details concerned (or the response to the question). Accordingly, I am taking the request for details of the amounts paid to the relevant experts as a request for records containing such details.

It is a matter of public knowledge that the member of the expert group were Dr A, Dr B, Dr C and Dr D, and that the total payment to the group was €66,171.58. The Department has disclosed that €32,254 was paid to the retired civil servant (Dr A). Copies of the records showing the breakdown of the remaining €33,917.58 have been provided to this Office for the purposes of this review.

Submissions

.

Findings

Section 21(1)(c)

Section 21(1)(c) of the FOI Act provides for the refusal of a record where its release could "reasonably be expected to disclose positions taken, or to be taken, or plans, procedures, criteria or instructions used or followed, or to be used or followed, for the purpose of any negotiations carried on or being, or to be, carried on by or on behalf of the Government or a public body". A record found to be exempt under section 21(1) may be released in the public interest, however, further to section 21(2).

The Department's initial position, as explained in its submission of 28 February 2008, is that there is a limited number of experts on the health effects of electromagnetic fields and to release the details at issue in this case would compromise the Department's ability (and that of other bodies) to procure the services of such experts in future, which ultimately would not be in the public interest.

In her letter to the Department of 26 June 2009, Ms Moran outlined to the Department that she considered section 21(1)(c) not to apply to the details concerned. Ms Moran commented that the Department's argument seemed more in keeping with a claim that section 21(1)(b) applies to the details (which provides that a request for access to a record may be refused if such release could reasonably be expected to "have a significant, adverse effect on the performance by the body of any of its functions relating to management ...". ). She also explained that, in determining whether any provision of section 21(1) applies, the Commissioner must be satisfied as to the potential harm to the Department's performance of its management functions (such as the assessment of risks to the public), or as to the potential harm to the Department's negotiations (or those of other bodies) that might arise from disclosure at issue in this case.

As regards section 21(1)(c), Ms Moran said that while the details at issue might be said to reveal the outcome of negotiations on payment terms, she did not consider them to disclose the actual positions the Department took in those negotiations, not did they reveal plans that the Department or other bodies might adopt in future similar negotiations. She noted that neither do they disclose instructions used or followed for the negotiation of such arrangements by the Department.

In relation to section 21(1)(b), Ms Moran said that the Commissioner was unlikely to accept that the release of factual information as to the amounts paid for work carried out on behalf of the State would cause people in the business of providing similar services to refuse to conduct such work for the Department or other bodies in future. She referred to the relatively routine release of details of payments made to other parties who conduct work for the State or who provide it with particular services; to the length of time the FOI Act has been in operation in Ireland; and to the fact that FOI regimes are in operation in a wide number of countries worldwide. She told the Department she considered the Commissioner would be unlikely to accept that the pool of experts, from which the Department (or other bodies) could seek similar advice in future, would be in any way limited by the release of the details at issue in this case.

I concur with Ms Moran's views.

Although the Department responded to other questions in Ms Moran's letter of 26 June, no response was received to the views set out above. In a further letter to the Department of 15 September 2009, she told the Department she would take it that it did not dispute the views she had outlined (and in so doing, referred the Department to the provisions of section 34(12) of the FOI Act). The Department, in a subsequent telephone conversation with Ms Moran, said that it had no comment to make, and accordingly, I am taking it that it does not dispute Ms Moran's opinion as to the non-relevance of section 21 to the records at issue in this case.

Even if this is not the case, I am of the view that the Department has not met the requirements of section 34(12) of the FOI Act, in that it has not demonstrated how the release of the details at issue could lead to the outcomes against which sections 21(1)(b) and (c) of the FOI Act are designed to mitigate. I thus have no grounds to find that these provisions apply, and I find accordingly.

Section 28

Section 28(1) of the FOI Act provides for the refusal of a request where to grant it would involve the disclosure of personal information of a person other than the requester. However, such information may still be released further to section 28(5)(a) of the FOI Act, where the public interest in release of the details outweighs the public interest in protecting the applicant's right to privacy in respect of the details concerned. Whilst giving examples of what might constitute personal information, section 2 of the FOI Act defines personal information as being "information about an identifiable individual that (a) would in the ordinary course of events, be known only to the individual or members of the family, or friends of the individual, or (b) is held by a public body on the understanding that it would be treated by it as confidential". The provision goes on to say that personal information includes "information relating to the financial affairs of the individual".

Firstly, it appears that the Department does not consider section 28 of the FOI Act to be applicable, given that its internal review decision and correspondence with this Office do not refer specifically to such a view. It follows that it does not consider details of the payments made to be personal information (as defined above) about Drs C and D. I consider this to be a reasonable assumption to make, having regard to comments in Dr D's letter to the Department of 30 October 2007 (supplied to my Office by the Department). Dr D refers to an email sent by the Department to another of the experts, in which the Department apparently indicated that certain information regarding persons under contract to a public body is excluded from the definition of personal information. In this regard, section 2 of the FOI Act goes on to provide that "in a case where the individual is or was providing a service for a public body under a contract for services with the body, the name of the individual or information relating to the service or the terms of the contract or anything written or recorded in any form by the individual in the course of and for the purposes of the provision of the service".

It was apparent from Dr D's letter that he considered the exclusion to the definition of personal information to be inapplicable as there was no formal contract in place, in which he considered section 28 to apply to details concerning him. Dr C also submitted to the Department that the information at issue related to his personal financial income, and thus to his privacy.

Ms Moran told the experts that she considered there to be, at the very least, an implicit contract in place; and that, as the exclusion from the definition of personal information does not preclude the existence of implicit contracts, she considered it to be applicable in the circumstances of this case. Thus, she considered that the terms upon and subject to which the experts provided their services to the Department, which would include the amount of payments they received for those services, cannot be described as their personal information. Accordingly, she considered section 28 not to apply to such details.

As noted above, Dr C did not reply to Ms Moran's view. Dr D's reply reiterated the comments he had made in his letter to the Department of 30 October 2007. He said that he did not agree with Ms Moran's view that the phrase "under a contract" (for services) can pertain to an implicit contract, and that he considered a contract to be something that two parties "formally agree upon and that is written down and signed". He contended that, as there was no written signed contract in this case, the exception to section 2 does not apply.

I sympathise, but do not agree, with Dr D's views. For one matter, it seems to me that the Department considers there to be a contract in place. Firstly, it apparently referred the experts to the exclusion to the definition of personal information arising from the existence of a contract for service, and secondly, its submissions to this Office, while alluding to the views of the experts, have never explicitly stated that it considered section 28 of the FOI Act to be relevant. I have also had regard to the legal position regarding contracts, sourced from the on-line version of Murdoch's Dictionary of Irish Law. Murdoch's defines a contract as being "a legally binding agreement", and lists various types of contract, including "implied contracts", which it says arise "from the assumed intention of the parties". Murdoch's also explains that, in order for a contract to be valid and legally enforceable, there must be (1) an offer and unqualified acceptance; (2) an intention to create legal relations; (3) consensus ad idem; (4) legality of purpose; (5) contractual capacity of the parties; (6) possibility of performance; (7) sufficient certainty of terms; (8) valuable consideration.

Thus, I have no reason to conclude, particularly from the Department's apparent stance on the non-relevance of section 28 (with which it is by now clear that I concur), that the above conditions have not been met in this case. I agree with Ms Moran's views as to the existence of an implied or implicit contract and to the ensuing exclusion of the details at issue in this case from the definition of personal information, and find accordingly.

Given the existence of an implicit contract for services, there is no need for me to consider the nature of the information at issue. However, I would agree with Ms Moran's view that details of public monies, paid for services provided to a public body by individuals in their capacity as experts on a particular area, are not connected with any particularly private aspects of the lives of those individuals, but would instead relate to their business affairs. Thus, the details at issue in this case would not amount to the personal financial and tax information of the experts (as suggested by one of them to the Department), particularly where the payments are only one element of total income derived from their expertise, and where they reveal no details whatsoever about tax that was due (in Ireland or elsewhere) on these payments or on any other element of the experts' income.

In the light of my finding that section 28 cannot apply to the details at issue, there is no need for me to consider the public interest. I hold the view that the nature of the information at issue has a bearing on the consideration of the public interest; therefore the less private the information, the less of a public interest in protecting it. Thus, even if the information at issue in this case were personal information, I consider that its release would involve, at most, a minimal intrusion on the privacy of the individuals concerned. I hold this view as the payments did not derive from a means test or family circumstances, or as mentioned earlier, any particularly private aspect of the experts' lives. The public interest in protecting such information is reduced, accordingly. I would also add that I have no reason to accept the contention put forward by one of these experts to the Department that the information at issue could be used against him in some way, in which case I do not accept that the expert's right to privacy would be further impacted upon accordingly.

Both Drs C and D, in their correspondence with the Department, suggested that the need for openness is met by disclosure of the total cost of the report. While I accept that release of the total cost partially meets that public interest, it is hard to ascertain the true value for money spent without knowing the individual payments made. Such disclosure would further the public interest in accountability of the Department for the expenditure of public funds, when employing the services of experts. In the light of these views, and my view as to the minimal intrusion on the rights to privacy that would result from release of the details at issue, I would find that the details in this case would warrant release in the public interest.

Confidential Information/Commercially Sensitive Information

Neither of the relevant provisions (sections 26 and 27, respectively) were referred to by the Department or the experts. As per section 34(12), I thus have no grounds to withhold the records on the basis of these exemptions. For completeness, however, I set out below my views on the application of these provisions.

Section 26

Section 26(1)(a) provides that a FOI request shall be refused where the record concerned contains information:

given to the public body concerned in confidence and,

on the understanding that it would be treated by it as confidential and,

its disclosure would be likely to prejudice the giving to the body of further similar information from the same person or other persons and,

it is of importance to the body that such further similar information as aforesaid should continue to be given to the body.

Section 26(1)(b) provides that a request for access to a record shall be refused "if disclosure of the information concerned would constitute a breach of a duty of confidence provided for by a provision of an agreement or enactment ...or otherwise by law". There is no evidence that there is a duty of confidence provided for by a provision of an agreement or enactment in this case. Accordingly, the only duty of confidence that may exist is one that exists "otherwise by law" i.e. an equitable duty of confidence. In order for such a duty to exist, this Office considers that three conditions must be met, viz.

the information contained in the record must have the necessary quality of confidence about it and

that information must have been imparted in circumstances imposing an obligation of confidence and

there must be an unauthorised use of that information to the detriment of the party communicating it.

Crucially in this case, however, section 26(2) provides that subsection (1) shall not apply to a record which is prepared by a staff member of a public body in the course of the performance of his or her functions unless disclosure of the information concerned would constitute a breach of a duty of confidence that is provided for by an agreement or statute or otherwise by law and is owed to a person other than someone who is providing or provided a service for a public body under a contract for service.

I would concur with Ms Moran's view that neither section 26(1)(a) nor section 26(1)(b) can apply in this case, given the existence of an implicit contract between the Department and the experts. Neither could I accept that there could be any mutual understanding (explicit or otherwise) between the Department and the experts that details of payments made for their services would be kept confidential. There is no evidence to this effect and I would also question whether the Department could reasonably be expected to treat information relating to the payment of public monies as confidential where they relate to services rendered for the production and publication of a particular report. Finally, given my view that the details are not intrinsically private, I could not accept that they can be said to be held by the Department in confidence. I would find sections 26(1)(a) and (b) of the FOI Act to be irrelevant in this case, if it were necessary.

Section 27

Section 27(1)(a) of the FOI Act is concerned with trade secrets, which I consider to have no potential relevance to this case.

Section 27(1)(b) of the FOI Act provides that, subject to the public interest test in section 27(3), a head shall refuse to grant a request for a record if the record concerned contains financial, commercial, scientific or technical or other information whose disclosure could reasonably be expected to result in a material financial loss or gain to the person to whom the information relates, or could prejudice the competitive position of that person in the conduct of his or her profession or business or otherwise in his or her occupation. Section 27(1)(b) provides for the withholding of records containing information whose disclosure could prejudice the conduct or outcome of contractual or other negotiations of the person to whom the information relates.

Ms Moran commented to the Department and the third parties that, in the ordinary course of events it is understandable that service providers might want to keep private and confidential every aspect of their business dealings, whether with public bodies or otherwise. She accepted that one could argue that knowledge of the fees paid may assist other experts engaging in similar future work for the State, by enabling them to offer to do such work at a lower cost. She pointed out that in this case, however, all that would be revealed are total amounts paid that are now two years old and historic. The records do not disclose details (such as hourly rates or other factors) that might be relevant to the fees normally charged by an expert in a particular field. She did not see how the records could be of use to any "competition" at this point in time, and thus could prejudice the current competitive position of any of the experts. Equally she explained that she do not see how the details of the total sum paid for a particular piece of work could have any impact on any other negotiations in which the experts may be currently involved at this point in time. Thus, she felt that section 27 could not be said to apply to the details concerned. I would concur with Ms Moran's views and would find accordingly, if it were necessary for me to do so.

For reasons set out earlier, I would be of the view that the public interest would warrant the release of the details at issue. I am not persuaded by the Department's initial argument that such release would hamper its ability to procure with such goodwill the services of experts of an equivalent calibre in future. In this regard, I refer again to the commonplace disclosure, under and outside of FOI, of details of payments for services rendered to public bodies, and to the fact that FOI is a common feature of many countries. I would also think it unlikely that, having regard to the Department's submission of 28 February 2008 concerning the "goodwill ethos towards provision of [the experts'] advice, without undue personal financial gain", these experts (or others) would refuse to carry out similar such work in future, simply because details of the payments received are released in this case.

Decision

Having carried out a review under section 34(2) of the Freedom of Information Act 1997, as amended, I hereby annul the decision of the Department in this case and direct that it release the records at issue in this case.

Although my review is concerned with records in existence at the time of this request, and does not require the creation of records following the request, I would ask the Department to consider providing the applicant, outside of the FOI Act, with the details regarding the breakdown of the figure of €33,917.58 (three sentences in total), as contained in its letter to this Office of 28 February 2008.

Right of Appeal

A party to a review, or any other person affected by a decision of the Information Commissioner following a review, may appeal to the High Court on a point of law arising from the decision. Such a review must be initiated not later than eight weeks from the date of this letter.